JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: BOASE -v- ASICA DEVELOPMENTS PTY LTD [2009] WASC 183
CORAM: LE MIERE J
HEARD: ON THE PAPERS
DELIVERED : 30 JUNE 2009
FILE NO/S: CIV 2358 of 2008
BETWEEN: TIMOTHY BOASE
Plaintiff
AND
ASICA DEVELOPMENTS PTY LTD
First DefendantREGISTRAR OF TITLES AT LANDGATE (ACN 86 574 793 858)
Second Defendant
Catchwords:
Practice and procedure - Application for an order suspending the enforcement of a judgment pursuant to Civil Judgments Enforcement Act 2004 (WA) s 15 - Turns on own facts
Legislation:
Civil Judgments Enforcement Act 2004 (WA), s 15
Rules of the Supreme Court 1971 (WA), O 14 r 3(2)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff: In person
First Defendant : Mr S J Davis
Second Defendant : No appearance
Solicitors:
Plaintiff: In person
First Defendant : Taylor Linfoot & Holmes
Second Defendant : No appearance
Case(s) referred to in judgment(s):
Grant v Banque Franco‑Egyptienne [1878] 3 CPD 202
Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203
Re Utsa Pty Ltd (in liq) (Unreported, VSC, 26 June 1998)
Ruffles v Chilman [1999] WASCA 112
Sami v Roads Corporation [2009] VSCA 44
State Bank of Victoria v Parry [1989] WAR 240
LE MIERE J: The plaintiff applies for an extension of time in which to apply for an order under s 15 of the Civil Judgments Enforcement Act 2004 (WA) (the Act) and for an order that the order made on 24 October 2008 that the plaintiff pay the first defendant's costs of the originating motion be suspended until action CIV 2388 of 2008 is finalised.
The originating motion
By a notice of motion dated and filed on 15 October 2008 the plaintiff applied for an injunction to restrain the first defendant (ASICA) from disposing of, transferring, conveying, incurring any encumbrance on or otherwise dealing with the property at Lot 83 Colby Way, Thornlie (Colby Way Lot). The plaintiff's application came on for urgent hearing on the afternoon of 15 October 2008. After hearing argument from the parties I granted an interim injunction restraining ASICA from dealing with the Colby Way Lot. At the time I stated that the plaintiff's case was, in essence, that in late June or early July 2007 an oral agreement was reached between the plaintiff on behalf of himself and his company, T Boase Investments Pty Ltd, Mr Dryka, Mr Dryka's company, MKT Thornlie Nominees Pty Ltd, Mr Jneid and companies controlled by Mr Jneid, being R and Z Investments Pty Ltd and ASICA. After referring to the plaintiff's argument and various documents put into evidence to support it I outlined some of the difficulties in the plaintiff's case. I then stated that notwithstanding those matters I was, with some reservation, satisfied that the plaintiff had made out a serious case to be tried. I said that in coming to that decision I had regard to the fact that the plaintiff was acting in person and had put together the…
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- AGLC
- Boase v Asica Developments Pty Ltd [2009] WASC 183
- Case
- [2009] WASC 183
- Decision Date
CaseChat Overview and Summary
The court considered the principles set out in Sami v Roads Corporation, where it was held that the mere chance of obtaining costs upon a decision at some subsequent stage of the case should not prevent the litigant from paying the costs already ordered to be paid under a separate judgment. The court also referred to Re Utsa Pty Ltd, where a short stay of an order for costs was granted on the basis of the applicant's financial circumstances. In this case, the plaintiff claimed to be in difficult financial circumstances and argued that requiring him to pay the outstanding costs order would result in financial hardship, potentially forcing him to abandon his action in CIV 2388 of 2008. However, the court found that the plaintiff had the ability to borrow money to pay the outstanding costs order and that the plaintiff's financial situation did not warrant a stay of the enforcement of the judgment.
The court dismissed the application, finding that the plaintiff's financial circumstances did not justify a suspension of the enforcement of the judgment. The court emphasised that the possibility of setting off obligations under a costs order against some future order in favour of an applicant was not sufficient justification for a stay. The plaintiff's ability to borrow money to pay the outstanding costs order and the lack of evidence of significant financial hardship meant that the application was unsuccessful.
Orders
Orders of the court
Application dismissed
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In Sami v Roads Corporation [2009] VSCA 44 Williams AJA said that the 'possibility of setting off obligations under a costs order against some future order in favour of an applicant has been proffered as the justification for a stay' [27]. His Honour referred to Grant v Banque Franco‑Egyptienne [1878] 3 CPD 202:… where a stay of costs orders associated with an application was sought on the basis that the amount payable could be set off against costs which might be payable if the applicant were successful in the action. The application was refused, and Jessell MR (with whom Cotton and Thesiger LJJ agreed) said:'It was quite unheard of, in courts where the practice of several taxations prevailed, that the mere chance of the litigant obtaining costs upon a decision at some subsequent stage of the case was to prevent his paying the costs already ordered to be paid under a separate judgment. Certainly no such rule ever existed in the old Court of Chancery and no such practice has been established under the Judicature Act; it does not seem to me that we ought to establish any such practice and that part of the application ought to fail' [27].Williams AJA also referred to Re Utsa Pty Ltd (in liq) (Unreported, VSC, 26 June 1998) where Chernov J 'distinguished the facts in Grant from those before the court. [Chernov J] awarded a short stay of an order for costs in favour of liquidators who were obliged to pay costs, yet to be taxed, to the applicant in another proceeding' [28]. The plaintiff says, in effect, that he is in difficult financial circumstances. He is unemployed and has no substantial assets which might be realised to pay the outstanding costs. The evidence presented by the plaintiff in relation to his financial circumstances is not comprehensive. Nevertheless, the material presented satisfies me of two things. First, the plaintiff has the ability to borrow money to pay the outstanding costs order. Second, to do so would impose a financial hardship on the plaintiff in that it would reduce the funds available to the plaintiff which he might borrow for the purposes of meeting his day‑to‑day living expenses. In his written submissions of 2 April 2009 the plaintiff said that his application for a suspension order 'is asking the court for the opportunity to put his claim in CIV 2388 of 2008 which in all probability will be denied him if his application fails'. The plaintiff is self‑represented in CIV 2388 of 2008 and hence requiring him to pay the outstanding costs order will not deprive him of funds which he is applying to meet his legal costs in CIV 2388 of 2008. In his affidavit of 2 April 2009 the plaintiff swore:The deponent has real concerns that the pressure to find some kind of income (over and above the Centrelink payments he 'may' receive in the near future) to stem the outgoings the household finances are currently enduring, as described in paragraph 13(ii) of his Submissions, will result in him having to abandon the action in CIV 2388 of 2008.